Court No. - 45
Case :- WRIT - C No. - 20575 of 2018 Petitioner :- Smt. Meera Devi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Deepak Kumar Srivastava Counsel for Respondent :- C.S.C.,Pawankumar Dubey
Hon'ble Ajay Bhanot,J.
The petitioner has assailed the order dated 15.5.2018 passed by the appellate authority in Appeal No.11 of 2018, Smt. Meera Devi Vs. State of U.P. and others rejecting the stay application accompanied the memo of appeal.
The submission of Shri D.K. Srivastava, learned counsel for the petitioner is that the order has been passed without application of mind.
A perusal of the order demonstrates that the order is a speaking one and has been passed after due application of mind. The legal criteria for consideration of an application for interim relief have been adhered to in the order impugned. Consequently, there is no infirmity in the order passed by the appellate authority. The same is not liable to be interferred with.
At this stage, Shri Srivastava, learned counsel for the petitioner recast his relief. He submits that a subsequent allotment has been made subsequent to the rejection of the stay application. The anxiety of the petitioner is that the appointment of a fresh fair price shop dealer would entrench third party right. The remedy of appeal will be rendered illusory since the petitioner would be faced with a fate accompli.
Shri Sanjay Ram Tripathi, learned Standing Counsel submits that the rights of the original allottee have been settled by the Hon'ble Supreme Court in the case of Poonam Vs. State of U.P. and others reported 2016(7) ADJ 530 (SC).
Having heard the learned counsel for the parties, it is well settled position of law that the rights of the original allottee have been amply protected by the Hon'ble Supreme Court in the case of Poonam (supra). The Hon'ble Supreme Court in the case of Poonam (supra) held thus:
"50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party."
The subsequent allottee has no rights over and above that of the original allottee. The existence of the subsequent allottee will depend upon fate of the appeal and also on result of final litigation between the petitioner and the respondent-State authorities. He has no right beyond that.
In view of the aforesaid position of law, it is directed that the appointment of a subsequent allottee shall abide by the decision of the appeal.
With the aforesaid direction, the writ petition is disposed of.
Order Date :- 30.5.2018 Ashish Tripathi